When a legal entity – usually a private limited company – ceases to carry out any business activities, it may be wound up. The legal entity is then liquidated.
Decision to dissolve
The liquidation of a legal entity begins with the resolution to dissolve it. In the case of a private limited company (BV), this resolution is passed by the General Meeting (in the case of a foundation or association, the board or the members’ meeting takes this decision). The articles of association may impose specific conditions on this resolution. The resolution is recorded in the minutes of the General Meeting. These minutes must, of course, show that all conditions were met when the resolution was passed. The resolution to wind up the company must be registered in the commercial register at the Chamber of Commerce.
Winding up
Following the decision to dissolve the legal entity, it does not cease to exist immediately. This is because its assets still need to be settled; the entity must be wound up. The liquidator investigates the legal entity’s debts, realises all its assets and uses the proceeds to settle those debts.
Once the liquidation has been completed, this is reported to the Chamber of Commerce. The legal entity then ceases to exist.
Turboliquidation
If the legal entity no longer has any assets, the liquidation phase may be omitted. After all, that phase serves no purpose in such circumstances, as there are no longer any assets. The legal entity then ceases to exist at the moment the resolution to dissolve it is passed. This is also known as ‘turbo-liquidation’.
The risk of a ‘turbo liquidation’ is obvious: creditors only find out that the legal entity has been wound up once the resolution to wind it up has been registered with the Chamber of Commerce.
More conditions
Minister Dekker for Legal Protection writes in a letter to the House of Representatives that the turbo-liquidation scheme entails risks, but is certainly not unsuitable. The risks naturally relate in particular to situations in which a legal entity is left with (tax) debts (“failures”).
Dekker proposes a number of measures. These are intended to ensure that any creditors are notified of the liquidation at an earlier stage and that they have more information about the assets of the legal entity undergoing liquidation.
The board of the legal entity to be dissolved:
- must draw up and file a final balance sheet (with the Chamber of Commerce), and these documents must be accompanied by a statement from the board explaining why certain income items are missing;
- ensure that the turbo liquidation is widely publicised;
- and the legal entity will only be struck off the commercial register once the annual accounts for all previous financial years have been published (unless an exemption has been granted).
It is not yet clear when the new conditions will come into force. Dekker has indicated that he intends to submit a preliminary draft of the bill for consultation in the course of 2020.